Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The German Constitutional Court (GCC) has issued another impactful ruling, this time concerning fundamental rights. In an order published yesterday, the GCC exercised its authority to review the implementation of a European Arrest Warrant (EAW) from Italy to Germany. The subject, a US citizen convicted in Italy in absentia, argued that his conviction lacked due process and that Italian law provided no recourse for appeal.

The GCC applied its “identity control,” for the first time, to a case falling entirely under EU Law. By reviewing the judgment upholding the implementation of the EAW, the GCC indirectly reviewed the Framework Decision itself. The GCC emphasized its established stance on “identity control” and determined it was applicable in this situation. Ultimately, it overturned the lower court’s decision but maintained that the Framework Decision and the German implementation were acceptable.

This outcome is entirely reasonable.

The Italian trial in absentia clearly violated the European Convention on Human Rights (ECHR) because the accused was not notified of the hearing date or represented by counsel. In essence, the trial was flawed. This contrasts with the Melloni case, where the Court of Justice of the European Union (CJEU) ruled that the Spanish Constitutional Court couldn’t use higher national standards to halt an Italian EAW. In that case, Mr. Melloni’s trial in absentia adhered to the Convention’s minimum requirements. This case before the GCC exemplifies an improper handling of a trial in absentia, justifying a Member State’s refusal to enforce a decision reached under such conditions, as per the Framework Decision.

So, why the commotion? Why did the GCC engage in “identity control” when the Framework Decision already resolves the issue similarly?

It appears the GCC is signaling its disagreement with the Melloni case law to Luxembourg. They imply that the CJEU’s interpretation of Article 53 of the Charter, which mandates Charter-level protection in cases solely governed by EU Law, won’t be easily accepted. The GCC asserts its intent to conduct “identity control” in all EU Law cases, even those entirely dictated by European regulations that lower national protections.

This judgment is insignificant in its specifics but carries symbolic weight. The decision aligns with the Spanish Constitutional Court’s ruling in Melloni, which lowered the domestic protection level for the right to a fair trial but not based on EU Law. The Spanish court deemed the CJEU’s judgment in Melloni a “useful reference” but not binding, ultimately adhering to the Luxembourg criteria solely on Spanish constitutional grounds. The GCC echoes this sentiment, employing the nuanced mechanism of “identity control.”

This development isn’t unexpected. For over half a century, Constitutional Courts in Europe have shaped the narrative on fundamental rights. In countries like Germany, Spain, Portugal, and Italy, these courts have safeguarded human rights against a backdrop of questionable state track records. These powerful and influential courts have a long tradition and are unwilling to recede. European integration is pushing them aside, but current events in Europe and globally are so serious that these courts feel obligated to remain guardians. While this stance might appear nationalistic, it also underscores the significance of the issues confronting the EU: data protection, counterterrorism, immigration, the Euro, financial assistance for Member States, and more. Why would these courts choose irrelevance now when the stakes are as high as, if not higher than, those faced in the past?

This shouldn’t cause alarm as long as the Court of Justice proceeds thoughtfully. While it performed well in the OMT case, fundamental rights remain a complex area. Akerberg Fransson and Melloni were bold yet risky starting points, followed by cautious decisions. However, Opinion 2/13 and the CJEU’s failure to adapt to potential future ECHR accession, including external oversight from Strasbourg, represent a detrimental misstep that has only alienated Constitutional courts. If these courts are subject to Strasbourg control, why shouldn’t the CJEU be as well? Many Constitutional Courts rightly wonder, “What is Luxembourg afraid of?”

Recovering from the situation created by Opinion 2/13 won’t be easy for the CJEU. However, the Charter remains a valuable tool, a wellspring of inspiration that could help the Court win over national Constitutional Courts in the future. Additionally, the ongoing events in Poland present an opportunity for the CJEU to demonstrate its commitment to supporting national Constitutional courts under threat. The current climate is challenging, but the CJEU possesses the necessary authority, reputation, and experience to rise to the occasion.

The GCC has spoken again. It would be simplistic to dismiss this as mere nationalistic posturing from Karlsruhe. Instead, it serves as a reminder to the CJEU of the paramount importance of fundamental rights and its role as the Charter’s interpreter. This is another chance for the CJEU to shed the sentiment often expressed by its judges: “We are not a fundamental rights court.” Whether they acknowledge it or not, they have become one. The longer they deny this reality, the more jarring the eventual realization will be.

*Reblogged from the ‘Despite our Differences’ blog

Barnard & Peers: chapter 9, chapter 25

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